GSL & SRD -- Comments, Questions, and Hopes

[Lizard]

A question about the "revise-at-will" property of the license: Is this real?

If I made an agreement to paint your house for $5000, but I put in that "I can change the amount at any time, at my discretion", then you don't really have much of an agreement. Unilateral "Revise-at-will" seems so much to break a fundamental to contracts, which (entirely in my understanding) is that they are specific, that I'm having trouble believing that you can really have that in a contract. So either it is not quite so broad as that (per contract law and precedents) or the provision is invalid from day one.

It was part of the STL, as well. The difference was that the STL included a 30 day 'cure' period, so even if the license was changed, you could revise your product to conform to it (not to mention the possibility of just going to the OGL). IANAL, but, as written, it seems that WOTC can put anyone in breach and withdraw the license by changing it to exclude a product, with no chance of a cure -- you're obeying the license today, they change it tomorrow, and you are now in breach and the license is revoked, end of story.

 

[see]

A question about the "revise-at-will" property of the license: Is this real?

Well, it's almost the first thing they put in the license:

2. Updates or Revisions to License. Wizards may update or revise the License at any time in its sole discretion by posting the updated License on its website page located at http://www.wizards.com/d20. Wizards will indicate on the License the date it was last updated. Licensee is responsible for checking the License regularly for changes, and waives any right to receive specific notice of changes. Licensee’s continued use of any Licensed Materials (as defined below) after the “Last Updated” date above, including without limitation any publication or distribution of Licensed Products (as defined below), confirms Licensee’s acceptance of any changes to the License.

 

[tomBitonti]

[I may be WAY off in the reasoning below; I'm working from my laymans understanding of contracts. Anyone out there that can say whether my reasoning makes any sense?]

I am reading that text and just not believing it. Or rather, I am wondering how there is any agreement at all, and, as a result, how there is a contract at all.

Am I wrong in considering the license a contract?

I'm thinking of the license as a contract because it stipulates an exchange of value: The licensee is allowed to do some things but must also not to do certain things. The licensee gains a value (to be able to use the licensed property in certain ways), but also loses a value (the ability to use their content in the OGL; the ability to make certain products that are allowed by fair use). The loss in value to the licensee must be seen as a gain in value to WoTC, for otherwise, what is the point of those specific sections of the license? That seems to make the GPL a contract.

What bends my mind is that, as a contract, the terms are not fixed. WoTC, as the licenser, can, at their whim, remove all of the value provided to the licensee while maintaining all of the value to the licensee.

My understanding is that a contract must have an actual exchange of value. So ... because the license may be updated to create terms which create an invalid contract, the terms that allow the update must either be invalid, or must not be as broad as they seem to read, or the license as a whole must be invalid.

[Side note: If there is an exchange of value, doesn't that have to be assigned a dollar value, and possibly be taxable?]

 

[pemerton]

What bends my mind is that, as a contract, the terms are not fixed. WoTC, as the licenser, can, at their whim, remove all of the value provided to the licensee while maintaining all of the value to the licensee.

My understanding is that a contract must have an actual exchange of value. So ... because the license may be updated to create terms which create an invalid contract, the terms that allow the update must either be invalid, or must not be as broad as they seem to read, or the license as a whole must be invalid.

Many contracts permit unilateral variation - for example, just yesterday I got a letter from my bank telling me what the new terms of use were for foreign exchange transactions on my credit card.

The relevant question is: What is the extent of unilateral variations permitted by that clause of the agreement? I don't know enough contract law, let alone the specifics of these sorts of licence agreements, to usefully speculate. But to take one extreme example: if WoTC purported to amend the GSL by adding a clause along the lines of "In addition to the foregoing, any licensee using any 4e Reference becomes obliged to assign all the licensee's property to WoTC" I don't think that that would be an effective variation.

[Side note: If there is an exchange of value, doesn't that have to be assigned a dollar value, and possibly be taxable?]

If I promise to mow your lawn in return for you giving me a glass of lemonade we may well have a contract. But in most US jurisdictions probably neither of us have to pay tax, as the provision of services is mostly tax exempt in the US, and your provision of lemonade to me probably is not liable to retail sales tax.

In a jurisdiction which has a VAT/GST then many goods and services provided pursuant to contract may be taxable - it will depend upon the basis for liability to taxation (eg the good or service may have to be provided in the course of trade or commerce).

I don't think that the GSL involves the provision of any good or service, so there is probably no tax liability even in those jurisdictions that do have a VAT/GST.

 

[tomBitonti]

Many contracts permit unilateral variation - for example, just yesterday I got a letter from my bank telling me what the new terms of use were for foreign exchange transactions on my credit card.

In the case of credit card fees -- aren't there laws which regulate what fees are allowed and how they may be changed?

The relevant question is: What is the extent of unilateral variations permitted by that clause of the agreement? I don't know enough contract law, let alone the specifics of these sorts of licence agreements, to usefully speculate. But to take one extreme example: if WoTC purported to amend the GSL by adding a clause along the lines of "In addition to the foregoing, any licensee using any 4e Reference becomes obliged to assign all the licensee's property to WoTC" I don't think that that would be an effective variation.

That is exactly my question: How much can the license actually be modified?

 

[pemerton]

In the case of credit card fees -- aren't there laws which regulate what fees are allowed and how they may be changed?

In most jurisdictions there probably are. But (to use some slightly arbitrary categories) these laws would be part of the law pertaining to banking transactions and consumer credit regulation. They would not have any applicability to intellectual property licences.

That is exactly my question: How much can the license actually be modified?

As I said, I'm not enough of a contract lawyer in Australia, let alone the state of Washington, to offer a useful answer. And the one contract law book that I have on my shelf discusses only mutual variation, not unilateral variation. But I'd be surprised if there is no developed law on the issue.

EDIT: There are a few additional complexities. Because the GSL is a licence, ultimately it is up to WoTC to determine on what terms it wants to license its IP. As it has no legal obligation to offer any licence, there is unlikely to be any particularly strong restrictions on the terms it can seek, other than the general prohibitions on contracts that are illegal or contrary to public policy (eg no requirements of slavery or prostitution in order to get access to WoTC's IP).

But the GSL is (on my reading) not an entirely unilateral licence, it is a contract - because consideration is flowing in both directions (WoTC licenses the use of its IP, and the licencee agrees to forebear from certain otherwise lawful behaviour, such as reproducing any text from the 4e books, or printing OGL products containing the same content as a book published under the GSL).

I suspect (but this is purely intuition, and not especially well-informed intution) that WoTC is precluded from varying the contractual terms in such a fashion as to render the promise given by the licencee completely worthless, or a promise to do a fundamentally different thing. That is, WoTC must continue to give something in return for having received those promises of forbearance from licencees.

This means that variations which have effect into the future, but not retrospectively, might be in quite a different category of permissibility from those that are retrospective.

A further complication relates not only to variation but termination: namely, in many jurisdictions (including, I suspect, the state of Washington) post-contractual representations, or other ways of generating assumptions on the part of a licencee, on which reliance is then made by a licencee, can in some circumstances generate obligations on the part of WoTC not to depart from those representations (in Australia and England this is called the doctrine of estoppel). Thus, what WoTC says in its FAQ, and in response to the queries of Clark and others, is (contrary to some assertions by some posters in some of these GSL threads) not meaningless and of no legal signficance.

 

[Brown Jenkin]

Many contracts permit unilateral variation - for example, just yesterday I got a letter from my bank telling me what the new terms of use were for foreign exchange transactions on my credit card.

All of my credit cards allow the banks to make changes. However those changes must be agreed to by both parties. The bank changes that show up all say that you agree to the changes by continuing to use your account. If you do not agree you need to let them know and you can no longer make any new charges. However all existing balances will continue to exist and be governed by the previous agreement until paid off.

The problem with the GSL is that no such language exists. I would think that for the GSL to be effective there needs to be some sort of out clause for both parties that allows existing products to continue but no new on ones if the publisher decides that they don't agree to changes in the GSL.

 

[tomBitonti]

... text omitted ... Thus, what WoTC says in its FAQ, and in response to the queries of Clark and others, is (contrary to some assertions by some posters in some of these GSL threads) not meaningless and of no legal significance.

Thanks! That was a very informative reply.

In your closing note, do you mean "not meaningless and of no legal significance", or should one of the negations be removed?

EDIT: Ah, so "not [meaningless and of no legal significance]".

Thanks again!

 

[pemerton]

Thanks! That was a very informative reply.

In your closing note, do you mean "not meaningless and of no legal significance", or should one of the negations be removed?

EDIT: Ah, so "not [meaningless and of no legal significance]".

Thanks again!

Yes, that was a poorly worded phrase, but your edit gets it right. Depending on their precise content and exactly what sort of reliance is placed on them by 3PPs (and the extent to which WoTC encourages or acquiesces in that reliance) then I think those FAQs etc could be very meaningful and of quite a degree of legal significance.

 

[Michael Morris]

That assumes some nefarious evildoers rubbing their palms in giddy delight about how their wicked plans have been so perfectly set.

So on that, I believe you are jumping the gun. In the end, they don't own your setting, so the worst they can do is terminate your license. Nowhere did I get the impression they would chase a company down for abandoning 4ED and going to another system. I am fairly certain WOTC did not create a "no take backsees" rule, lest we have all fallen into tall grade school

That is dangerously naive. While I true Scott, Linnae, and most all the folks at WotC now, who will be in charge of WOTC's RPG department in a year? In two years??

People make promises - corporations do not. Never, ever trust a corporation. When the staff rollover occurs (and it will occur, it's a part of life) there is no guarantee if the next group will stay true to the current policies.